In November, New Yorkers will head to the polls to decide on a very significant question that most are only dimly aware of: whether to hold a state constitutional convention, the first in a half-century.
The convention, or Con Con, as it’s known in political circles, is an opportunity to make profound, long-lasting, and much-needed changes to New York’s outdated state constitution — or open a Pandora’s box that could doom working people forever, depending on whom you ask. I’ve written in favor of holding a convention before, but with the vote fast approaching, it’s a good time to lay out arguments for and against the measure, so New York voters understand what’s at stake and what could happen if a majority of them approve rewriting the state constitution.
If a majority statewide votes “yes,” a constitutional convention will be set for the spring of 2019. The convention would be made up of elected delegates, with three provided from each state senate district — there are 63 in total — plus fifteen statewide. Elections would occur next year, and anyone can run to be a delegate.
These delegates would come together with unlimited abilities to propose amending the constitution in any and all ways they can agree upon. Any amendments approved by delegates would need to be ultimately approved by the voters. This is important to remember: No changes can occur to the constitution without statewide approval at the ballot box.
The last New York State constitutional convention was held in 1967, some years after which the law was rewritten to require a vote on a convention every twenty years. Voters turned down a convention in 1997; if this vote fails, New York won’t get another chance to try for one until 2037.
Below, you’ll find common arguments for and against a constitutional convention, and what we might expect if one is approved. The caveat here: With only two conventions in the last century — in 1938 and 1967 — the past certainly doesn’t have to be prologue.
Though a July Siena College poll found that 47 percent of New Yorkers backed a convention, with only 34 percent opposed, most elected officials and interest groups on both sides of the aisle want the ballot initiative defeated in November. (More on that below.) Those in favor include the good government group Citizens Union; Bill Samuels, a prominent liberal activist and fundraiser; Evan Davis, a former counsel for Mario Cuomo; a group of Women’s Marchers who are hoping a convention could enshrine abortion rights in the state constitution ahead of any Trump attempt to weaken Roe v. Wade; and the New York State Bar Association.
The elder Cuomo supported holding a convention, though his fellow governor son, Andrew, has been noncommittal. The arguments for a convention boil down to being offered a rare chance to enact sweeping change without grinding through a deeply flawed legislative process. The New York State Constitution is an old, unwieldy document — the length of a short novel, at fifty thousand words — that has not been updated since 1938.
Backers of a constitutional convention are largely liberal, though the Republican minority leader of the state assembly, Brian Kolb, also favors holding one. Samuels has spoken about adding a new bill of rights to the constitution — rights to affordable higher education, clean air and water, healthcare, equitable funding for schools — that would make New York a much more progressive place.
Campaign finance and voting bills that have repeatedly failed to pass the Republican-controlled senate, like closing the LLC loophole and allowing early voting, could be written into the constitution. Other things that would never pass any state legislature, including term limits for all lawmakers, could become a reality as well.
For New York City residents, there’s potentially much to gain. Both upstate and downstate communities want more autonomy from the state legislature and governor, in order to control if or how much localities raise income taxes, raise the minimum wage, or in the case of New York City, implement new rent regulations. A home-rule provision in a new constitution would allow a city of more than eight million residents to chart its destiny independent of Albany’s whims, freeing the five boroughs from the yoke of upstate and suburban conservative legislators who have voted to gut protections for tenants.
Some academics also see a far-reaching opportunity to dissolve the state assembly and senate and move to a unicameral legislature — which could take some of the vast leverage away from the executive branch by providing a single legislative body to face off against the governor. A unicameral legislature could be a boon for the city: City interests dominate the assembly but always run into roadblocks in the senate, where the larger districts are more susceptible to gerrymandering.
More small-bore, but not necessarily less consequential, reforms could come out of a convention as well. Legal watchers hope the governor could lose his power to elevate judges to the appellate division — the state’s second-highest court level — to geographic areas they are not from. Former governor George Pataki, a Republican, drew the ire of many in the 2000s when he tapped an upstate conservative judge to serve in an appellate division that included Manhattan.
Convention proponents also hope to lessen the remarkable leverage the governor currently holds over the budgetary process. In 2004, Pataki won a case against the Assembly Speaker at the time, Sheldon Silver, that limited the legislature’s ability to change the governor’s wording in budget bills. As esoteric as this sounds, the ruling has since allowed the executive branch to set just about all the terms of state budget battles.
Without knowing who the delegates are or what issues come to dominate a hypothetical convention, it’s difficult to predict what will really happen. All changes agreed upon at the 1967 convention were eventually voted down because, in part, they were packaged together at the ballot box, and one proposed change — allowing the state to provide funding for religious schools — ultimately sunk the others. Supporters hope the same thing won’t happen again.
Opponents are much easier to find. The Republican majority leader of the state senate, John Flanagan, and the Democratic Speaker of the Assembly, Carl Heastie, are against holding a constitutional convention. So are Mayor Bill de Blasio, State Senator Jeff Klein — the leader of the Independent Democratic Conference — and most other politicians in New York State.
Their opposition, in part, is driven by the strenuous and united front against a convention led by the state’s major unions, who fear the loss of state protections for labor rights. They are set to outspend and possibly outmaneuver Con Con. They have formed a group, New Yorkers Against Corruption, to harness this energy and money.
Conservatives see much to lose from a Con Con, too. Guns-rights groups and the New York State Conservative Party, formed originally to push Republicans to the right, have joined New Yorkers Against Corruption, out of fear that progressive interests would steer New York too far left.
One argument made against a convention is that the delegates will end up being elected officials or lobbyists determined to protect the status quo, as happened in 1967. With a convention likely to occur during the 2019 legislative session, state lawmakers might be deterred from serving as delegates alongside their regular Albany duties.
The more significant argument animating opposition is the potential loss of strong labor protections baked into a constitution last written in 1938, when organized labor was on the rise. Pension obligations could be wiped away. Liberal opponents of a convention warn that right-wing billionaires like the Koch brothers and Robert Mercer, the Donald Trump backer and Breitbart funder, could hijack the process by spending millions to elect fiercely anti-union delegates.
So far, no billionaire has spent significant money for or against holding a constitutional convention in New York, and there’s no evidence the Koch brothers have any interest in investing their vast resources here when so many battlegrounds in the Midwest and South have preoccupied them. Still, anything is possible, and labor unions don’t see Con Con as a risk worth taking.
Another question is how quickly, if a convention wins at the ballot box in November, progressive convention supporters could mobilize to elect delegates and strategize for what would be an undertaking unprecedented in most New Yorkers’ lifetimes. Proponents haven’t articulated much of a game plan for electing delegates or keeping the process out of the hands of more nefarious elements.
Of course, most of the great organizing forces in this state, like labor unions, are working to defeat it. They could change course and throw their muscle into protecting their rights at a 2019 Con Con.
The odds, however, of a state constitution stripping away significant labor protections and passing in a statewide vote are not that high. New York is increasingly Democratic. Any Mercer/Koch expenditure would be countered by the combined forces of organized labor and the political establishment in one of the greatest pitched wars the state has ever seen.
That is, if any of this comes to pass. As in 1997, most voters may just say “no” to a Con Con.